APRIL 18 — In the proposed Constitution of Federation of Malaya, Article 122 (Supreme Court) read as follows:
(1) The Supreme Court shall consist of a Chief Justice Supreme and other judges; but the number of the other judges shall not exceed fifteen until Parliament otherwise provides.
(2) The Chief Justice and the other judges of the Supreme Court shall be appointed by the Yang di-Pertuan Agong.
(3) In appointing the Chief Justice the Yang di-Pertuan Agong may act in his discretion, but after consulting the Conference of Rulers and considering the advice of the Prime Minister; and in appointing the other judges of the Supreme Court he shall, after consulting the Conference of Rulers, act on the recommendation of the Judicial and Legal Service Commission.
(4) Before acting, in accordance with clause (3), on the recommendation of the Judicial and Legal Service Commission the Yang di-Pertuan Agong shall consider the advice of the Prime Minister and may once refer the recommendation back to the Commission in order that it may be reconsidered.
Clearly from the above, the prime minister was not intended to be totally removed from the process of appointing judges of the superior courts — that is, the High Court, Court of Appeal and Federal Court.
It was intended that the Yang di-Pertuan Agong was to act in his discretion, but after consulting the Conference of Rulers and considering the advice of the prime minister. (Emphasis added)
The appointment of superior judges is now provided under Article 122B of the Federal Constitution. Article 122B(1) reads as follows:
The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers. (Emphasis added)
To “consider” means to “think carefully about something”, while to “act” is to “take action”. To “act on advice” means to “take action as a result of advice”.
It is to take action or make a decision based on the advice provided by someone else. The action is therefore a direct result of the advice given, not something done independently.
Accordingly, it is the Federal Constitution that has to be amended so that, as alluded to by nine past presidents of the Malaysian Bar, the prime minister is not “the gatekeeper” and “has de facto say in the appointments of judges”.
It should be the “first reformative step towards strengthening the independence of the Judiciary”.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
